One of the most explicit immigration laws in the United States is the government’s stance against unauthorized employment. It is a violation of the country’s immigration and labor laws, which can attract heavy punishments. According to the United States Citizenship and Immigration Services (USCIS), unauthorized employment is any labor or service performed for an employer within the U.S. by a foreign national who is not authorized to accept employment.
It also involves working beyond the period or scope of one’s employment authorization. While this may look simple on paper, what constitutes lawful work in the U.S. is more than working for an employer. There are several other actions that could be deemed unauthorized employment.
What Constitutes Unauthorized Employment?
This is one of the most confusing topics for many foreign nationals in the United States. Without a clear understanding of the law, you could unwittingly violate your immigration status. For this reason, it is essential to seek guidance whenever making an employment decision. You may be engaging in unauthorized work by participating in any of the following:
Being Employed Without Authorization
Being employed by a company or an individual without proper authorization could be deemed illegal employment. Both you and your employer will answer to the law if you are caught.
Unauthorized Self-Employment
Unauthorized work is not limited to working for an organization or individual. If you establish or run a business in the United States without the required approval, even if you do it on a part-time basis, it will be considered unauthorized employment.
Volunteering
You do not need a work permit to volunteer in the U.S. However, there are rules concerning volunteering in the country. Volunteering means donating your time with an organization primarily set up to provide charitable or humanitarian deeds without any form of compensation or remuneration.
Furthermore, in order to protect the jobs of United States citizens and guard against the exploitation of workers, volunteering is generally not allowed in a position that should be filled by a paid worker. For instance, it may be considered an unfair arrangement to work for free in a position that is performed by a paid person, even if it is solely for the purpose of gaining experience. This is because your free service may be denying someone paid work.
Also, playing an active role in the creation of a company may be deemed unlawful if you don’t have proper authorization to do so.
Passive Investment Is Allowed With Stipulations
Foreign nationals are allowed to make financial investments to generate capital gain without a work permit. Investment in the stock market, bonds, or other forms of savings that bring returns is permitted. You can also invest in a private company as a passive investor. However, playing an active role in the day-to-day running of a business or active Forex trading could be considered unauthorized employment.
A very good example is the case of Wettasinghe versus USCIS, where a student was found to have violated his status for investing in and being actively involved in running a business. Wettasinghe bought a fleet of six ice cream trucks and leased them to people for the purpose of selling ice cream on the streets. His active involvement included the regular buying of ice cream and stocking the trucks, plus occasionally driving the trucks when a driver was unavailable. The court ruled that his activities were akin to unauthorized employment and affirmed his deportation or voluntary departure order.
How About Internet Freelancing?
The law seems to be somewhat murky in this area. However, remote freelancing could be deemed a home business even if it is done on the internet. If your status does not allow employment in the United States, you may be violating immigration law. Discuss this specific scenario with your immigration attorney before engaging in any work.
How Will USCIS Know If I am Engaged in Unauthorized Employment?
One of the most frequently asked questions about U.S. labor law is whether or not the USCIS will find out if one engages in unlawful employment. In this age of information, it has become unrealistic to assume this. The immigration agency has the means to discover instances of unlawful employment, and when they do, the consequences will be grievous. Some of the ways the USCIS can detect unauthorized employment include:
Tax Records
If the unlawful job involves filing a tax document like a Form 1099, the USCIS may find out through your income tax. While this is the jurisdiction of the IRS, the USCIS can simply request the information from them.
Through the Internet
In today’s age of social media where almost every activity is being shared online, with just a simple search about you or your employer, the USCIS can have access to evidence confirming unauthorized work. Even if you are very smart and don’t share such information on the internet, you never know when a colleague or other person might share a group picture of you at work on Facebook, Twitter, or Instagram.
Someone Might Report You
Even when the employment is under-the-table work within your neighborhood, someone might suspect and report you. If it is in an organization with multiple employees, you might also be reported by a coworker. The report could lead to an investigation by the USCIS.
What if I’m an F1 student and have an idea for a business?
Based on the laws surrounding the F1 visa you cannot work off-campus but you can accept on-campus work. But what if you have a great business idea? Well, you can take steps to lay the framework of the business and then after graduation you can get OPT work authorization to follow through on it. Unauthorized employment under F1 is greatly frowned upon. If you have concerns or confusion whether the work you are doing violates immigration law, seek help from your immigration attorney.
I-485 Denied Due to Unauthorized Employment
If you find yourself receiving a notice that your I-485 was denied due to unauthorized employment the first call you should make is to your immigration lawyer. They will help you strategies ways to possibly appeal the denial and/or gather evidence in your favor that the work was authorized.
Consequences of Unauthorized Employment
Engaging in unauthorized work could lead to penalties, which include:
Deportation
Removal proceedings could be initiated against you if you have been found to have violated your status by engaging in unauthorized employment. If you are found guilty, you will likely be deported to your home country.
Ineligibility to Extend or Change Status
If you are on a work or student visa and you are considering changing or extending your status someday, engaging in unlawful work may just jeopardize that goal. According to immigration law, a foreign national must abide by the terms of his status, one of which is compliance with labor laws. Violating this makes you ineligible to change or adjust your status.
Inadmissibility Grounds for Future Entry
Engaging in unauthorized employment could lead to a cancellation of your visa. And, if you want to reapply in the future, the record will stand against you.
Ineligibility for Status Adjustment
Unauthorized employment places a bar on your status adjustment. It doesn’t matter if the time of the unlawful work is before or after filing the adjustment of status petition, you will be considered ineligible to become a green card holder. For example, during your status adjustment procedures, you will be asked to indicate whether or not you have engaged in unauthorized employment in the U.S. Unless you willingly decide to lie, you will have to admit it. Keep in mind that lying in your petition could be deemed falsification, which is another serious offense.
What If I Need to Work and I Don’t Have an Authorization?
It is understandable that everyone needs to earn an income to meet everyday needs. However, that should not be leveraged as grounds to engage in a violation of your status.
If you are in the United States on a work visa, it is believed that everything about employment must have been taken care of right from the onset of your visa application. You, therefore, need to stick to the scope and period of employment allowed by your status.
If you are on a student visa, there are several legitimate ways for earning an income by doing either on-campus or off-campus work. Just ensure you get proper documentation from the appropriate source.
Also, some people on visitor visas are trying to work in the United States which is an outright violation of their status and should not be considered at all. If you are under a visitor visa and you must work, the right thing is to apply for an employment-based visa. You can also opt for a student visa which will allow you to study and work on a part-time basis for a limited number of hours per week. However, you must not assume that you have the right to start working until your application has been approved by the USCIS.
Can I work for a foreign-based company?
According to the laws, this isn’t allowed either even if they are paying you through a foreign bank account. It is still seen as employment.
How to Obtain Work Authorization
The general work permit in the United States is officially known as the Employment Authorization Document (EAD). It is a way to prove that you are lawfully allowed to work in the United States for a specific period of time. If you are not a U.S. citizen or lawful permanent resident, you will need to obtain an EAD to work in the U.S.
Eligibility for EAD
The EAD application can be filed by foreign nationals under the following statuses:
- Nonimmigrant work visas
- Students and exchange visitors
- Asylee and asylum seekers
- Foreign nationals with a pending green card application
- Fiancés and spouses of United States citizens
Process of Obtaining Employment Authorization Document
To request an Employment Authorization Document, you will need to file an I-785 form. This same form is used for renewing or replacing an expired or lost EAD. Your application must be submitted alongside the following supporting documents (as applicable to each applicant):
- A copy of your Nonimmigrant Arrival-Departure Record, I-94 (front and back).
- Your passport or other travel documents
- A copy of your last EAD, if you have been issued one
- Your G-28 form, if an accredited representative or attorney is representing you
- A copy of any government-issued identity
- The final note of eligibility resettlement and your I-797 form (for refugee applicants)
Penalty for Working on a Tourist Visa USA
You should not violate the terms of your tourist visa, which explicitly forbid working. See the section above titled ‘Consequences of Unauthorized Employment’ for an overview of possible penalties you may incur. The best course of action is to apply for a work visa if you have a desire to work in the United States.
Permissible Activities on B2 Visa
- Tourism or social visits to friends/family
- Medical reasons
- Engaging in social activities
- Amateur athletes or entertainers
- Dependents of crewmen or armed forces
Can a B2 visa holder apply for a work permit?
No, they are not permitted.
Will USCIS Ever Forgive Unauthorized Employment?
In very select cases they have forgiven unauthorized employment but this does not mean you should engage in it unless you don’t care about jeopardizing your status in the U.S. Officials take unlawful conduct very seriously and will have no qualms issuing deportation orders if necessary.
Can My Spouse Get Employment Authorization?
Yes. Spouses of foreign nationals may obtain work authorization and work in the U.S. Most U.S. visa classifications have derivative visas for the immediate relatives of the principal beneficiary. For instance, if you are on an H-1B visa, your spouse can apply for and obtain an H-4 visa. Similarly, an O-1 visa’s spouse can also get an O-3 visa.
Related Post:
H-4 Visa: Processing Time, EAD Work Permit, Application, Process in 2023
For the exchange visitor category, spouses and dependents of a J-1 student can also get J-2 visas.
The J-2 files theApplication for Employment Authorization(I-765) with the applicable Service Center, along with documentation demonstrating that the employment is not required to support J-1 (this is most easily proven with evidence of the salary paid to the J-1).
These derivative visas allow the holders to apply for and obtain employment authorization by following the same procedures above. While the process might take some time, it is worth the wait considering the severe penalties that unauthorized employment carries. Therefore, there is no excuse for engaging in unlawful employment.
FAQs
Will the USCIS Know About Unauthorized Employment? 2023 Guide? ›
You may be wondering how USCIS will know about your unauthorized employment. If the unlawful job involves filing a tax document, USCIS can find out about it through your income tax return.
Does USCIS check your employment history? ›Does USCIS Check Your Work History? The USCIS will check an applicant's work history. With that, you will need to provide certain information for each employer—whether you have worked abroad or in the United States for the past five years.
Is unauthorized work forgiven? ›While officials may in select cases forgive unauthorized work, it is best not to take the risk even if you don't plan on pursuing permanent residency or citizenship in the U.S. Unauthorized employment for foreign nationals can lead to removal proceedings.
Does unauthorized employment change status? ›Unauthorized employment places a bar on your status adjustment. It doesn't matter if the time of the unlawful work is before or after filing the adjustment of status petition, you will be considered ineligible to become a green card holder.
How do I adjust my status after unauthorized employment in the US? ›Adjustment of Status and Employment Authorization
The adjustment of status applicant must also apply for and be granted employment authorization. Generally, the applicant must file Form I-765, Application for Employment Authorization, and receive an Employment Authorization Document before accepting employment.
Use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens.
What actually shows up in an employment verification check? ›An employment verification will usually verify a candidate's title, employment dates (start and end), and occasionally salary history and job duties. Salary related questions are becoming less frequent as local laws are prohibiting those types of questions.
Does USCIS have access to IRS? ›The U.S. Immigration and Citizenship Services (USCIS) is not responsible for making sure you pay your taxes.
Does unauthorized employment affect consular processing? ›The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing. Furthermore, the Immigration and Naturalization Service (INS) has the discretion whether or not to grant adjustment of status.
What is 180 days of unauthorized employment? ›The 180 days include the period during which they were in violation of their legal status, but only if they have not been working for more than two years. A person must apply for adjustment of status before committing unauthorized employment or another unauthorized status.
Is unauthorized employment illegal? ›
Working without permission is illegal/unauthorized employment. We want you to be successful while at UNT so please be very careful when considering employment options in the United States.
Can you get in trouble for lying on employment verification? ›If you use fake employment verification methods to obtain a loan, lease, or credit card, you may be unable to make payments as needed and therefore fall further and further behind financially. You can go to jail. Lying about your job history can come with criminal charges and potential jail time.
What is considered false employment history? ›Embellished titles, exaggerated job duties, altered dates of employment, and even false references are also common. Job seekers may also provide fictitious information during the recruitment process, such as reasons for leaving previous positions.
How do you know if you're legally authorized to work in the US? ›U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are authorized to work in the United States. Having an Employment Authorization Document (Form I-766/EAD) is one way to prove that you are authorized to work in the United States for a specific time period.
How do I report someone working in the US without a visa? ›Call 1-866-347-2423, the ICE Homeland Security Investigations Tip Line, to report an immigration violation from the U.S. or Canada. If you are in another country, call 1-802-872-6199.
How to answer are you legally authorized to work in the US without restriction? ›If you are a U.S. citizen, whether you were born or naturalized in the United States, this means that you can work in the United States without any problems. However, foreigners are only allowed to work if their immigration status allows it.
What shows up on USCIS background checks? ›If the USCIS official feels it necessary to secure other background investigations, they have the authority to do so. However, the three most common parts of this check include the investigation of your background, fingerprints, and a name check.
Does background check take data from USCIS? ›The USCIS collects your biometrics and submits them to security agencies such as the Federal Bureau of Investigations (FBI). These agencies scan their databases for records that match your name and fingerprints to reveal your entire criminal history. DISCLAIMER: Please note that this is NOT legal advice.
Can a employer contact USCIS? ›E-Verify Customer Support offers FREE live assistance Monday through Friday from 8:00 am EST to 5:00 pm local time, except on federal holidays. Employers call 888-464-4218 and employees call 888-897-7781. Was this page helpful?
What happens if they can't verify your employment? ›Employers who fail to respond to federal employment-verification requests can suffer fines and denial of government contracts for up to one year. Failure to complete an employment-verification request from another third party can dilute trust with current and former employees alike.
Do employers actually verify employment? ›
Do All Employers do Employment Verification? Although some employers choose not to verify applicants' past employment history, most companies do take this vital step in the pre-employment process.
Do background checks always include employment verification? ›The simple answer is no. A background check cannot return a list or access any database of a professional's jobs over the years. Most pre-employment background check services aim to uncover public record information, such as criminal record information, driving records, and credit checks.
Does USCIS look at your taxes? ›Your tax returns are very important proof that you are eligible for naturalization. On the day of your interview, bring certified tax returns for the last 5 years (3 years if you are married to a U.S. citizen).
Does USCIS look at bank statements? ›If you are able to have a Joint Account, USCIS would require 12 months of statements, or as many as possible. Meaning, if you've been married for 2 years, and have a joint account for 3 years, USCIS would want 3-years of bank statements. The more the better.
Does USCIS know if you owe taxes? ›The naturalization application Form N-400 issued by U.S. Citizenship and Immigration Services (USCIS) specifically asks about whether you have paid the taxes that you owe, including any federal, state, and local obligations. (See When Visa or Green Card Holders Must Pay Taxes if you're in doubt about your obligation.)
How do I report unauthorized employment? ›Call the LETF Public hotline anytime: 855 297 5322. Complete the Online Form / Spanish Form. Email us at letf@dir.ca.gov.
Does immigration check your background? ›When you apply for a green card, USCIS checks your criminal record with the information you provide at your biometrics screening. USCIS can also learn about your criminal background at your green card interview. All green card applicants have to undergo a biometrics screening.
Is working without authorization a deportable offense? ›So that's one thing to keep in mind, you always want to tell the truth, especially about work. If you work without authorization, that's not something you should do, but it's not a deportable offense in and of itself if you're adjusting status through marriage.
Can I work unauthorized while waiting for green card? ›The USCIS can overlook unauthorized employment for up to 180 days. If you have worked for 181 days or more, the I-485 application will likely be denied (but speak to an immigration attorney to see whether any exceptions apply in your case).
What is considered unauthorized employment? ›Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen's employment authorization.
Can I work online without a work permit? ›
For a variety of reasons, it is generally not possible to work remotely in the U.S. without a work visa. As more companies adopt “work from anywhere” policies with no geographic requirements, it can be tempting to jump on the opportunity to earn an income from your location of choice — the United States included.
What is considered employment for immigration purposes? ›The term “employment” generally refers to a relationship where an individual provides services or labor, and is remunerated for these services.
Can I volunteer while waiting for EAD? ›It is strongly recommended students not begin any type of employment including “volunteering” until they have reached their OPT start date, been approved for OPT, and have received the EAD card.
Can you go to jail for lying about employment history? ›If you sign a statement that the information you provide to the employer is true and then you proceed to lie, that is illegal. The odds of you being charged are likely slim. Depending on the state you're in, the legally enforceable repercussions (aside from getting fired) could include a civil penalty, such as a fine.
How do I fix bad employment history? ›- Be Equipped with an Explanation, but Be Honest. If you've had poor performance on a past job, don't hide it from your potential employer when asked. ...
- Explain How You Overcame These Issues. ...
- Take Courses to Overcome a Weak Skill-set. ...
- Obtain Better References. ...
- Leave it Out.
Lying on a Resume May Get You Fired
If you have landed a job after lying on your resume, background check, or in your interview, you can end up getting fired. This is especially true when your lie had something to do with a relevant portion of your job.
If there are any discrepancies between what the employment background check shows and what your application or resume state, you'll likely get a call from HR to find out why. Lying on an application is grounds for rescinding an offer or termination of employment if you're already working.
How do I remove false information from a background check? ›Disputing a background check can take up to 30 days. According to the laws under the FCRA (Fair Credit Reporting Act) Background check companies and employment reporting agencies have 30 days to correct any mistakes on your background check once you have submitted a dispute.
How often do people fail background checks? ›And even then, the majority of employers (59%) only disqualify 5% or fewer applicants based on past criminal convictions, according to Sterling Talent Solutions' Background Screening Trends & Best Practices Report—and 67% of employers said they would proceed with a candidate evaluation after finding a conviction not ...
What does an Employment Authorization Document look like? ›3. What Does an EAD Look Like? The EAD is a plastic card with the cardholder's identifying information and photo, the permit's expiration date on it, A-number and the receipt number of the I-765 application. It may also include the applicant's fingerprint.
Am I legally authorized to work in the U.S. without sponsorship? ›
Yes, it is possible to obtain a work visa without sponsorship from an employer in the United States. There are three types of visas that allow this, and they are known as EB-1, O-1, and EB-5. An immigration attorney can help with obtaining one of these visas.
What does it mean when it says are you authorized to work in the U.S. on an unrestricted basis? ›Permanent, Unrestricted Employment: Employment is authorized without restriction as to location or type of employment as a condition of the individual's specific immigration status. Employment under this category is available to U.S. citizens, U.S. permanent residents, asylees and refugees.
What happens if you get caught working without a work visa? ›Deportation. If you are not authorized to work in the United States and do so anyway, you could be subject to deportation proceedings if you are found to have violated your status.
What happens if you get caught working on a tourist visa USA? ›Some common examples of visa violations include overstaying your visa, working without authorization, or engaging in unauthorized activities. If you are found to have violated the terms of your visa, you will be deported and your possibility to return in the future may be revoked.
Is it illegal to work in the US without a visa? ›Anyone who works without a work permit would be exposing themselves to receiving a sanction which can range from fines to being deported from the country. To get a job in the United States, foreign workers must first meet one of these requirements: Having an Employment Authorization Document (EAD). A PERM work permit.
Who is not legally authorized to work in US? ›If you want to be legally authorized to work in the United States, you need to either be a citizen, or a permanent resident. It is possible without these statuses too, as long as you obtain an EAD.
Can you hire someone not authorized to work in the US? ›Remember it is against federal law to knowingly employ someone who is not authorized to work in the U.S. However, if you do employ illegal aliens, payment you make to them are subject to the same rules as payments you make to aliens who are legal.
What records does USCIS check? ›This includes administrative, applicant, criminal, personnel, and other files compiled by law enforcement. The initial response to this check is supposed to only take two weeks, but it can take over a year due to the large backlogs. If no match is found, your immigration application can proceed.
What does USCIS check for in background check? ›If the USCIS official feels it necessary to secure other background investigations, they have the authority to do so. However, the three most common parts of this check include the investigation of your background, fingerprints, and a name check.
Will USCIS contact previous employers? ›If you, your employer, or your school told USCIS where you work, then yes, they know. USCIS also sometimes does their own investigations to see if the information on immigration applications is correct. Simply having an employment authorization card or a green card does not necessarily mean USCIS knows where you work.
Does USCIS check with IRS? ›
The U.S. Immigration and Citizenship Services (USCIS) is not responsible for making sure you pay your taxes. However, many U.S. federal government agencies share information about people.
Does immigration show up on background check? ›Nonetheless, many different types of information are available in a comprehensive background check. These include: Immigration or citizenship status. A background check might verify an employee's Social Security number, immigration status, or citizenship.
What all shows on a background check? ›Criminal background checks will reveal felony and misdemeanor criminal convictions, any pending criminal cases, and any history of incarceration as an adult. Arrests pending prosecution may also be reported, and in some cases, arrests that did not lead to a criminal conviction may also appear.
What disqualifies you from becoming a US citizen? ›You have been convicted of or admitted to a crime involving moral turpitude, such as fraud. You spent 180 days or more in jail or prison for any crime. You committed any crime related to illegal drugs other than a single offense involving 30 grams or less of marijuana.
What disqualifies you from getting a green card? ›If you entered the U.S. unlawfully, have prior immigration violations, failed to attend removal proceedings, or otherwise abused the U.S. immigration process, you may be ineligible for a green card.
What is USCIS update news 2023? ›U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.
How does USCIS investigate? ›Usually, the USCIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. The USCIS officers may also arrange interviews with the couple at their residence or at USCIS offices.
Can a previous employer deny an employment verification letter? ›Unless legally required, employers are not required to fill out employment verification letters for past or present employees. Companies that prefer not to provide these verification letters will often include that information as part of their employee contracts, but not everyone is aware of this.
What is unauthorized employment immigration? ›Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen's employment authorization.
What are the consequences for hiring undocumented workers? ›Civil fines and Criminal Prosecution:
A maximum penalty of six months imprisonment and a fine of $3,000 per worker may be imposed. For I-9 paperwork violations, fines range from $110 to $1,100 per employee involved.
How will USCIS contact me? ›
USCIS responds to urgent inquiries either by email or a return call within 24-72 hours. USCIS aims to respond to non-urgent inquiries within 30 business days.